Traditional leadership and land expropriation are two very thorny issues in their own right but when the two became conflated it was bound to ruffle some feathers.

The issue came to the fore after the recent comments made by King Goodwill Zwelithini regarding the Ingonyama Trust. But are these issues really related?

Expropriation is when the state acquires private property for the public good.
The owner does not have a choice in the matter but is usually compensated for the loss. Compensation is currently up for debate but the more important question to ask is whether the trust land can be expropriated in the first place? Is the Ingonyama land private property in the true sense of the term?

Trusts are often used to manage property when beneficiaries are unable to do it properly themselves. The classical example is when parents die and leave a house to their children but the children are too young to own and manage it. Instead, the house is placed in a trust and managed by a trustee until the children are old enough to manage it themselves.

The Ingonyama Trust is different because it is a trust in name only.

Before democracy, the former homeland areas were formally owned by the South African Development Trust (SADT), which was an apartheid-era state institution.

When the SADT Act was repealed in the early 1990s, most of the land was transferred into the name of the department of land affairs, with a special dispensation being created for KwaZulu-Natal through the Ingonyama Trust Act. This was done to “persuade” Zwelithini and Mangosuthu Buthelezi’s Inkatha to participate in the 1994 elections.

The trust is an institution created by a statute and performs a public function, so it is therefore most likely an organ of state falling under the Constitution. For the state to expropriate land from an organ of the state would be like moving change from its one pocket and into another — there would simply be no point to it.

The real issue is the way in which the land is governed by the Ingonyama Trust on behalf of the people who occupy it. Although the land is formally owned by an organ of state, it is managed in terms of customary law on behalf of the occupants, whose rights are also legally protected. Customary law, as is all law in South Africa, must be aligned to the Constitution and the fundamental rights contained therein, which includes the rights to legally secure tenure and to just administrative action.

The real issues at play, and the recommendations made by the high level panel chaired by Kgalema Motlanthe, have little to do with ownership and expropriation but everything to do with transparency and accountability in the governance of communal land, such as that owned by the Ingonyama Trust.

Theo Boshoff is the head of legal intelligence and research at the Agricultural Business Chamber